Monday, December 19, 2016

As the Electoral College meets in state capitals today to vote on who will be our next president, it's worthwhile to contemplate what the Democrats have been trying to do as they sought to overturn the results of November's election and why they're doing so. Rich Lowry writes,

Surely there were alarmists who thought 2016 might end in an undemocratic coup. But who predicted Democratic opinion leaders would be the ones agitating for it?

For fear that Donald Trump will violate democratic norms, liberals want to have the Electoral College throw out the results of a presidential election and impose their choice on the nation for the first time in our history.

The hypocrisy is rather astonishing. A major theme of the Democrats and the press during the election was (reasonably enough) the absolute imperative of accepting the results. This lasted as a bedrock principle of democratic governance all the way until roughly 4 a.m. Wednesday, Nov. 9, when it became clear that Trump had won and angry protests in the streets, pointless, harassing recounts and calls for an Electoral College coup became the order of the day.

In theory, 37 electors could flip against Trump on Dec. 19, deny him the 270 electoral votes needed to win and precipitate one of the gravest constitutional crises in the history of the republic. If you spin out the scenarios, it’s hard to see how Trump would actually be denied the presidency (if no one gets 270 electoral votes, the contest is thrown into the Republican House). So the point of the whole exercise would simply be to disrupt as much as possible the heretofore sacrosanct peaceful transfer of power.

And it’s Trump who’s the threat to our system? More than anything else, the calls for an Electoral College coup expose a standardless will to power of a left that professes to value democratic procedure.

What else to make of opponents of the Electoral College urging the Electoral College to overthrow an election? The University of Texas law professor Sanford Levinson has called the Electoral College a “menace to the American polity.” Yet he is now a signer of a public letter urging members of this menace to re-engineer the November election to his liking.

The electors do have the power in theory to act as a last check on a presidential tyrant. But the norm of electors rubber-stamping the election’s winner is so ingrained in our system that any deviation from it would constitute a revolutionary act. The rationales advanced for a radical departure from the practice as established over a couple of centuries of American history are tinny and unconvincing at best.

Lowry points out that Peter Beinart argued in The Atlantic that the electors should vote against Trump because of his position on climate change. That's a policy issue, not a character question. And, as Lowry points out, under that logic, Beinart would be arguing for any Republican to be blocked from assuming the presidency. The other arguments are similarly lame.

Harvard professor Lawrence Lessig wants the electors to award Hillary Clinton the presidency on the basis of her victory on the after-the-fact metric of the popular vote that no one — not the Hillary campaign, the Trump campaign, the press or the voters — focused on during the election. This is inherently arbitrary; rules have meaning only if they are established and agree upon beforehand.

Robert Reich argues that the electors should vote against Trump so long as he doesn’t release his tax returns. Trump should indeed release his returns, but this issue was litigated extensively in the fall. What Reich is demanding is that, since voters didn’t put appropriate weight on this question in his view or arrive at his preferred conclusion, electors should substitute their own judgment. No one in 200 years would have thought this is a legitimate role of the Electoral College.

Then, there’s Russia. John Podesta wants electors to get an intelligence briefing on Russia’s hacking during the campaign, which is a way of insinuating that Trump’s victory was illegitimate. This, too, was argued about for months prior to the election. Voters had the option of discounting the WikiLeaks revelations given their provenance. To the extent this issue was decisive — and no one can know for certain — voters valued the new information about Hillary even though it was stolen. Again, there is no case for electors overruling them.

(It’s also a bit rich seeing the same liberals who defended President Barack Obama’s deference to Putin for years suddenly become cold warriors.)

I didn't support Trump, but he won the election under the system that our country has been holding elections since our first elections. It would set a very dangerous precedent to overturn that system after the fact simply because a winnder is objectionable. That's a very slippery slope that we don't need to start sliding down.

n the past decade the Russian government has mounted more than a dozen significant cyber attacks against foreign countries, sometimes to help or harm a specific political candidate, sometimes to sow chaos, but always to project Russian power.

Starting in 2007, the Russians attacked former Soviet satellites like Estonia, Georgia, and Ukraine, and then branched out to Western nations like the U.S. and Germany. U.S. intelligence officials and cyber experts say a strategy that pairs cyber attacks with on-line propaganda was launched by Russian intelligence a decade ago and has been refined and expanded ever since, with Putin's blessing. Russia has shut down whole segments of cyber space to punish or threaten countries.

It's an appalling list of what they've been able to get away with. I'm coming to view cyber attacks as our most serious national security problem right now. I don't hear anyone talking about a solution and I certainly don't hear Trump seriously addressing the issue.

The law gives Congress the power to rescind any unwelcome late, so-called "midnight" regulations from an outgoing president through a simple majority vote in both chambers of Congress.

Since its passage as part of House Speaker Newt Gingrich's Contract with America in 1996, it has only been successfully used once, but Republicans are promising to leverage its full power in January to kill rules the Obama administration has issued in its last months in office....

Republicans, with the help of the Congressional Research Service, have compiled a list of roughly 50 regulations they could go after early next year. Likely victims include a rule requiring federal contractors to allow their employees to take sick leave and another requiring the safe storage of chemicals and gas after last year's deadly fire at a chemical plant in Texas.

The NFIB and Republicans are waiting for Congressional parliamentarians to determine if the timing provided in the act also allows them to rescind overtime rules finalized May 23. The new regulations expand the time and a half payment requirement to some 4.2 workers, what conservatives say could hurt small businesses, forcing some of them out of business.

The law, in spite of Harry Reid's support sounds like a good idea.

"I know some of my Democrat colleagues say, 'Why did you do that?'" Reid said during his final speech on the Senate floor. "Here's what I did. I worked with Republican Sen. Don Nickles from Oklahoma … Don and I talked about this. We knew that the administrations would change and it would affect every president, Democrat and Republican."

"It was called the Congressional Review Act," he continued. "What that said is the president promulgates a regulation, Congress has a chance to look it over to see if it's too burdensome, too costly, too unfair … That was legislation that I did, and it was great when we had Republican presidents. Not so great when we had Democratic presidents. But it was fair."

Since Democrats are less likely to want to rescind regulations, the law gives more power to the party that wants to restrict federal regulations. That is why the Democrats didn't use it on Bush's regulations in 2009.

At the time, they could have tried to revoke regulations from the George W. Bush administration but decided not to because the act includes a provision that prevents a federal agency from writing a similar regulation in any form once Congress rescinds the existing one. Democrats wanted to strengthen, not roll back Bush-era regulations, so they opted forego use of the Congressional Review Act in early 2009.

The way the law works ensures its use only in the rare circumstance that one party controls both houses of Congress and has just won the White House from the other party.

It then allows lawmakers who oppose regulations to write separate resolutions to overturn each one. These resolutions operate under easier rules than normal bills. They need only a simple majority to pass both the House and Senate and so cannot be filibustered, which requires 60 Senate votes to overcome.

Garry Kasparov writes in the WSJ to contrast the spirit of optimism when the Soviet Union collapsed on Christmas Day in 1991 to what Russia has become under Putin and how the world has basically ignored and acquiesced to how Putin has gathered power into his hands.

When Vladimir Putin took power in 2000, he found few obstacles capable of resisting his instinct to remake Russia in his own KGB image. He also found a Russian public that felt betrayed by the promises of democracy and afraid of the violence and corruption we saw all around us. Mr. Putin’s vulgar rhetoric of security and national pride would have worn thin quickly had the price of oil not begun to skyrocket in the new millennium.

A rising cash flow enabled him to negotiate a Faustian bargain with the Russian people: your freedoms in return for stability. Few envisioned how far he would go in collecting on that bargain, but that’s always the trap with empowering authoritarians. Every step Mr. Putin took without consequences encouraged him to take another, and another.

Outside Russia, at every turn, Europe and the U.S. failed to provide the leadership the historic moment required. Russia was declared the successor of the U.S.S.R. with little argument, even being awarded a coveted spot in the G-7 in 1997. Mr. Putin first used that gift to validate his democratic credentials—and later to expose the hypocrisy of the leaders of the free world, who continued to indulge him as he ripped up Russian democracy root and branch.

Even today, members of the Western democratic establishment praise Mr. Putin as a “strong leader”—as he enters his 17th year of total power in an imploding Russia that millions have fled. The bedrock belief of the Cold War, that the U.S. and the rest of the free world would be safer and stronger by promoting human rights and democracy, has been abandoned in the West in favor of engagement and moral equivalence.

To paraphrase Tolstoy, every repressive state is repressive in its own way—but socialism has proved uniquely toxic. The utopian communist idea competed directly with capitalism and lost. Instead of admitting this failure, Soviet leaders squeezed the soul from their citizens by forcing them to perform in the macabre perversion of human nature that is totalitarian socialism.

Right-wing dictatorships like those of Taiwan, South Africa, Portugal and Chile made smooth transitions to vibrant democracy and the free market. Left-wing regimes have had a far harder time, as if socialism were an autoimmune virus that destroys a society’s ability to defend itself from tyrants and demagogues.

The story of human progress is striving, dreaming and sacrificing for a better future. Instead of believing that happy, successful individuals make for a successful society, socialism insists that a perfectly functioning system will produce happy individuals. When the system comes first, the individual becomes an afterthought. When the system fails, individuals are blamed for not surrendering to it enough. Recovering from a regime that restricts individual freedom is far easier than recovering from one that teaches that individual freedom is worthless.

In short, if more journalists had spent time in Middle America, they would have understood that this election wasn't decided at the last moment. The outcome was not a result of what was in those emails. People had already concluded they knew who Clinton was, and the revelations only cemented those sentiments.

Same with the Comey letter.

She argues that the election was decided much earlier than pundits thought.

Here is a shocker: I'd estimate based on my reporting that this election was baked before the debates, before the "Access Hollywood" tapes, before the hacked emails and before anyone took the time to actually notice, listen and understand just how upended the American voter is.

Pollsters will likely become apoplectic over my conclusion. That's OK, they deal with numbers and could likely argue with great big gobs of data that I'm wrong; while I am not in the business of predicting, I am in the business of listening to people....

Hillary Clinton lost because she ran arguably one of the worst campaigns in the history of campaigns; there was no message, their team ignored the pleas of longtime grassroots activists to be more engaged, and to stop hating on anyone who was not brown, black, gay or part of some specialized voting bloc.

Bill Clinton understood that, you could see it in his speeches and his mannerisms at each event in Western Pennsylvania and Ohio that I covered; he understood that the politics was not reaching the very voters he embraced 20 years earlier, and you could see it pained him to see them dying young, left behind and without hope.

There is an argument to be made that had reporters and Clinton's team done two things a year ago they would have understood what was happening this year; read Trump's book, "The Art of the Deal," and gone out and really listened to voters rather than make a spectacle of them.

There is also an argument to be made going forward that reporters should do the same thing today; we have four more years of this administration with a big midterm in between today and his potential reelection. It might be a good time to start to get to know both instead of spending the next four years continuously getting him and them wrong.

Whether in foreign policy, race relations, electoral politics, or even in the meaning of the hope and change he promised, Obama has turned to his life and symbolism as a default reference and all-purpose governing tool.

The personalized presidency can be inspiring. It can also feel arrogant. And it can bypass some of the very norms and institutions Obama rhapsodizes about so frequently — a dangerous proposition as the country braces for an unpredictable, unmoored successor.

Obama and his aides have regarded him as "his own vision." He has acted as if his own personal biography was enough to improve relations with Muslims worldwide. And he also seems to think that his biography gave him enough to understand the dangers that Israel faces.

Obama’s personal narrative is so flexible that he has cited it as proof of his empathy for Israel, too. As the president told the Atlantic’s Jeffrey Goldberg, he once interrupted Benjamin Netanyahu when he felt the Israeli prime minister was being condescending, lecturing him about the dangers Israel faced. “Bibi, you have to understand something,” the president said. “I’m the African American son of a single mother, and I live here, in this house. I live in the White House. I managed to get elected president of the United States. You think I don’t understand what you’re talking about, but I do.”

Somehow, I don't imagine that Netanyahu, whose brother died in the rescue raid on Entebbe, was impressed with Obama's argument. But it is typical of Obama to think that his background is enough to change people's behavior and understanding. And anyone worried about his executive actions should just relax because of his own greatness.

Over time, Obama would rely on that lawyerly background to render lofty principles more malleable, with a “don’t worry, it’s me” approach to national-security powers. When the New York Times described the president’s personal role in selecting terrorists (including a U.S. citizen) to target for attack, for example, it noted how “the control he exercises also appears to reflect Mr. Obama’s striking self-confidence: he believes, according to several people who have worked closely with him, that his own judgment should be brought to bear on strikes.”

And now Donald Trump will inherit those powers. As Lozada argues, Obama's self-referential approach to politics has made everything about him thus harming the Democratic Party.

Of course, Donald Trump is miles more solipsistic than Barack Obama. It is not an auspicious trend.

The big news in North Carolina has been the Republican legislature's efforts to limit the powers of the incoming Democratic governor, Roy Cooper with a series of laws passed since the election to be signed by the Republican governor Pat McCrory whom Cooper defeated. While a distasteful display of partisan power, it is not clear that these actions are unconstitutional despite the intentions of the Democrats to sue to block the laws' implementation. The Raleigh News and Observer writes,

But Cooper could have a hard time making the case that the legislature has improperly intruded on his turf, constitutional experts said.

Former state Supreme Court Justice Burley Mitchell said Cooper would have trouble claiming that reducing his appointments is unconstitutional, because those were written into state law, not the constitution.

As for the Senate’s role in appointments, it’s described in the state constitution. “The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for,” it says.

Mitchell said that while he had not studied the issue, he knew of no area of the constitution that would prevent the legislature from requiring Senate confirmation.

The state constitution does not set up three co-equal branches of government, Mitchell said.

“The legislature has always been predominant,” he said, while specific powers were given to the courts and the governor. “Absent something conflicting with that, it’s pretty much up to the legislature what they want to do.”

But Democrats invented this practice. The 1985 Democratic legislature placed the first cap ever on newly elected Republican Gov. Jim Martin, limiting him to 325 exempt positions.

The whole business of mass firings in state government pretty much began with the election of Democrat Kerr Scott in 1948, a Jacksonian figure who beat the more conservative machine. North Carolina was a one-party state then so this was factional Democratic warfare.

“Virtually every appointive department head in state government, and many in subordinated positions, was given his walking papers by Kerr Scott,’’ wrote James H. Pou Bailey, a conservative columnist and later a Superior Court judge. “Whether the man had done a good job in office made little difference. More important was whether he had supported Kerr Scott for governor.”

The Democratic-controlled legislature in 1977 passed a law that allowed Hunt to fire all employees hired during the past five years – or everybody hired during the Holshouser administration.

“The game of politics, as far as I know, is still played on the basis of ‘to the victor belong the spoils,’ ” said Joe Pell, Hunt’s patronage chief at the time. “That’s not considered illegal.”

Christensen also reminds us that Jim Holshouser, who was the first Republican governor since 1896, behaved the same way in firing Democrats. Amazingly, both parties work to restrict the power of the other party.

David McLennan, visiting professor of political science at Meredith College, said what happened Wednesday is reminiscent of 1987, when Democrats controlled the General Assembly and welcomed new GOP Gov. Jim Martin.

“In 1987, when Martin was in power, the Democrats took some powers away from the governor,” McLennan said. “It really has a longstanding tradition in North Carolina, this fight.”

McLennan noted that while the legislative and executive branches have fought over power in North Carolina, Cooper’s narrow victory over Republican incumbent Pat McCrory may have expedited that skirmish.

“This could have some real impact on the governor’s ability to govern,” McLennan said. “Governors have had generally free rein on who they appoint.” If the General Assembly requires approval for Cabinet officials, they could choose not to approve a more liberal appointee, he added.

Dinan also noted that Democrats stripped the lieutenant governor’s office of some of its powers when Republican Jim Gardner won in 1988. Many of the lieutenant governor’s powers as president of the Senate were given to the Senate president pro-tem then.

What we can learn from this rather tawdry political history is that both parties act to expand their own power and limit the power of a governor of the opposing party. It doesn't seem to be unconstitutional, just unappealing. I was discussing this with a colleague of mine and I said that this is always how politicians act and it's not going to change. If I had my preference, all politicians would act as if they were behind John Rawls' "veil of ignorance" by which they made political decisions as if they didn't know which position they will occupy in the real world. Thus, legislators could vote on what was best for the state government instead of what was best for their party. Alas, this is just a philosophical thought experiment, not the real world of rough and tumble politics.

A former student from our school and whom I had the pleasure of teaching in AP Government as well as coaching him for four years on the quiz bowl team, is now a PhD student at NYU and has done some very intriguing research to see if social pressure can stop people from being racist on the internet.

One possible avenue for nudging people to act better involves addressing those social norms: finding ways to make it clear to the perpetrators of online harassment and their racism that their behavior isn’t acceptable, that the broader community will socially sanction them if they continue to engage in it. In a new paper in the journal Political Behavior, Kevin Munger, a Ph.D. student at New York University’s politics department, offers a test of this theory.

For his study, which is cleverly titled “Tweetment Effects on the Tweeted” — a play on words of treatment effects — Munger used Twitter-scraping tools to come up with a list of Twitter accounts operated by white users who had used the word n*gger to harass black Twitter users, and then culled the list to include only those who had engaged in the most offensive tweeting, as defined by a list which included other slurs as well.

Then, Munger deployed some bots to try to tamp down the offensive behavior....

The bots, which Munger made look like actual accounts run by humans, responded to one of the offensive tweets with the line, “Hey man, just remember that there are real people who are hurt when you harass them with that kind of language.” As it turned out, the intervention worked — the targeted accounts became less abusive. “The effect persisted for a full month after the application of the treatment,” Munger writes. Overall, he believes the intervention “caused the 50 subjects in the most effective condition to tweet the word ‘n****r’ an estimated 186 fewer times after treatment.”

Now, there’s a pretty big but. The intervention only worked when the bot reprimanding the abusive Twitter personality appeared to be operated by a white user, and appeared to have a relatively high number of followers. This tracks with the idea that sanctions from prominent (or somewhat prominent) members of in-groups are the most effective.

He was a great student in high school and I'm so thrilled to see him being successful at the next level.

New York's Mayor de Blasio thinks that New York city workers are so emotionally fragile that they need psychotherapy help dealing with the results of the election. Unbelievable.

According to the New York Post, Mayor Bill de Blasio is creating a citywide safe space for New York City’s municipal workers and offering them psychotherapy sessions to deal with the results of the presidential election.

Taken literally (and we should), the mayor is telling citizens of New York City that they should indulge any potential weakness inside them that makes them believe they can’t deal with the results of American democracy when the results don’t go their way — that they’re easily injured, inherently weak and don’t have the personal fortitude to keep fighting for what they believe in.

See, there are politicians who will use any occasion to coax people into dependency on the state — whether for food, shelter, the raising of their children or hand-holding — when anything in life doesn’t go their way.

Remember, Mayor DiBlasio is offering New Yorkers therapy to cope with the results of an election. These are the same people who battle—every day—the vagaries of living in the largest metropolitan area in the country. These are the same people who survived 9/11.